Manca v Sehemo (M 201/2015) [2018] ZANWHC 70 (12 April 2018)

Manca v Sehemo (M 201/2015) [2018] ZANWHC 70 (12 April 2018)

The court found that the applicant failed to establish exceptional circumstances as required by section 18 of the Superior Courts Act to justify execution of the eviction order pending appeal. The applicant did not prove on a balance of probabilities that she would suffer irreparable harm if the order is not granted, nor that the respondent would not suffer irreparable harm if the order is granted. The respondent and his family reside in the property, and there is a bona fide dispute regarding ownership, with evidence of a prior sale agreement. The pending application for leave to appeal and unresolved ownership dispute preclude a finding that the respondent's claim has prescribed....

Citation
[2018] ZANWHC 70
Parties
Applicant: Patricia Lerato Manca; Respondent: Thapelo Johannes Sehemo
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
12 April 2018
Case Number
M 201/2015
Procedural Posture
Urgent Application / Application for Leave to Execute Judgment Pending Appeal Under Section 18 of the Superior Courts Act
Outcome
Application for execution of the eviction order pending appeal dismissed with costs.
Judges
R D Hendricks
Legal Topics
Section 18 Superior Courts Act, Eviction, Ownership Dispute, Exceptional Circumstances, Prescription, Double Sale
Civil Procedure Land and Property Section 18 Superior Courts Act Eviction Ownership Dispute Exceptional Circumstances Prescription Double Sale

Case Brief

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Parties

Patricia Lerato Manca

Applicant

Thapelo Johannes Sehemo

Respondent

Procedural Posture

Urgent Application / Application for Leave to Execute Judgment Pending Appeal Under Section 18 of the Superior Courts Act

Legal Issues

  1. 1 Whether the applicant established exceptional circumstances justifying execution of the eviction order pending appeal under section 18 of the Superior Courts Act.
  2. 2 Whether the applicant proved she would suffer irreparable harm if the order is not granted and that the respondent would not suffer irreparable harm if the order is granted.
  3. 3 Whether the respondent's claim to ownership is extinguished by prescription.

Ratio Decidendi

The court found that the applicant failed to establish exceptional circumstances as required by section 18 of the Superior Courts Act to justify execution of the eviction order pending appeal. The applicant did not prove on a balance of probabilities that she would suffer irreparable harm if the order is not granted, nor that the respondent would not suffer irreparable harm if the order is granted. The respondent and his family reside in the property, and there is a bona fide dispute regarding ownership, with evidence of a prior sale agreement. The pending application for leave to appeal and unresolved ownership dispute preclude a finding that the respondent's claim has prescribed....

Court Disposition

Application for execution of the eviction order pending appeal dismissed with costs.

Orders

  • The application in terms of section 18 of the Superior Courts Act 10 of 2013 for the execution of the order by Gura J and Kgoele J on 29 September 2016 is dismissed.
  • The applicant is ordered to pay the costs of this application.